Known unknowns of the facial recognition capability

In May, Federal Justice Minister Michael Keenan announced a plan to work toward a National Facial Biometric Matching Capability. It's since become known simply as 'the Capability'. The lead agency is the Attorney-General's Department (the AGD) — that is, the very same department frustrating many in the telecommunications industry with its implementation of data retention.

The Capability is not the product of an open and consultative process. This lack of transparency is concerning, as the project has privacy implications for nearly all Australians. If you have a passport or a driver's licence, it affects you.

Yet five months after the program was announced, we've been told very little about the Capability. There's no dedicated government website, webpages or fact sheets. Despite this dearth of information, the government expects the Capability to be operating by mid-2016.

What little we know — beyond two government media releases — has been gleaned from responses to Senator Ludlam's questions at Senate Estimates in May and last week, and reporting by a few specialist tech journalists, Crikey and Lateline.

In September, Keenan announced that the Federal Government is spending $18.5 million to establish the Capability. This announcement also revealed:

the Capability will initially provide one-to-one image-based verification service among Commonwealth agencies;

a one-to-many image-based identification service will follow to allow law enforcement and security agencies to match one photograph of an unknown person against many photographs contained in government records to help establish their identity; and

the government is also working with the states and territories to explore the scope for their police and road agencies to participate in the Capability.

We've been told that the facial images, over 100 million of them, will not be stored centrally. Katherine Jones, the AGD's deputy secretary for national security and criminal justice, informed Senate Estimates in May that the Capability is being established as a 'hub and spoke' system.

We later learned in response to a question on notice, that the Capability will also have the scope to scan CCTV images or stills. At a Senate Estimates hearing last week, Senator Ludlam elicited some further details, including that it is possible images from social media could be included.

Representatives from the AGD informed the hearing that they were undertaking privacy impact assessments in consultation with federal and state privacy commissioners.

Unfortunately, the track record on privacy impact assessments is not reassuring. In August, Latelinereported that there were no proper privacy impact assessments undertaken concerning almost 90 per cent of the national security measures passed in the past 14 years.

And a biometric data collection bill passed the Senate earlier this year, despite concerns over the wide expansion of powers. The privacy impact assessment relating to this bill was only tabled at the close of the second reading debate in the Senate. The public had no meaningful opportunity to review the assessment before the bill was passed.

Critical questions about the Capability remain unanswered. Is it necessary and proportionate? Is it the least privacy invasive solution to the problem? Are government agencies going to be open and transparent about the use of facial images it collects from us? Under what circumstances will law enforcement and government agencies be able to use the Capability, and who will authorise their use?

Who will be auditing the Capability? If errors are identified, are there adequate reporting mechanisms? For example, Dr Adam Molnar, lecturer in criminology at Deakin University, noted that: 'the latest facial technology is still plagued with error rates and inaccuracies ... in Australia there is no clear indication what authorities are willing to accept as an error rate when using facial recognition technology'.

The government hasn't provided any detail about what reporting will be required by the agencies concerning their use of the Capability, and what oversight there will be, if any.

Despite the introduction of new measures such as the Capability and data retention, we still don't have a dedicated privacy commissioner (Timothy Pilgrim is currently performing the functions of three statutory positions — acting information commissioner, FOI commissioner and privacy commissioner).

Nor is there any process for thorough parliamentary scrutiny of the Capability. The Attorney-General has stated that no new legislation is required, and confirmed at Senate Estimates last week that the government is not planning to undertake any general public consultation.

We need to continue this conversation. We need to demand our politicians ask the necessary questions and provide meaningful, timely answers.

Leanne O'Donnell is a senior lawyer with a focus on issues where technology and the law intersect. She tweets as @MsLods. This piece is written in her personal capacity.

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Why on earth are these surveillance programs being implemented in Australia? Why are politicians fervently implementing such measures: what's the ultimate agenda? I simply don't get it. I'd heard it'd happen but wasn't aware the scheme's already so far gone. I resent the notion of being surveilled. I've done nothing wrong, no criminal record, non-violent, and I want my privacy back if such a commodity still exists. What's a person to do other than turn off the technology, cover their face, and not speak: is that the new definition of privacy as I always thought privacy and freedom significantly interacted; synonymous in many forms. Freedom isn't hiding. Many thanks for your article. I sure learned from you Leanne. Have a great weekend.I/O | 30 October 2015

I suppose all the "selfies" that people seem so keen on taking these days are ending up as metadata and becoming grist to the mill in this exercise as well.Paddy Byers | 02 November 2015

Well the Australian Taxation Office are already taking voice prints when you phone them. More and more I'm starting to feel like I'm living in a countrywide open prison, how about you?RexAlan | 02 November 2015

Strewth!! I find when I look in the mirror each meaning I have to check twice to make sure it is really me who made it through the nightjohn frawley | 02 November 2015

Thank you, Leanne, for explaining a rather complex series of political events which could turn Australia into a Surveillance State without the necessary protection of our civil liberties. It is alarming how this chain of events can roll remorselessly on with little political resistance. Scott Ludlam is to be applauded as are others, like yourself, who have raised this issue. Edward Fido | 02 November 2015

This article sounds like more of the paranoid political correctness around privacy issues that has for example wasted vast amounts of public money on an useless e-health card. Thank god these people were not around when finger-print technology was being developed ,and even DNA technology was a bit early for them. Eugene | 02 November 2015

It amazes me just how complacent we are with modern technology invading our personal space. I for one avoid social web sites such as "Face book" but I am aware that my personal details are held in many places , often without my consent or knowledge. George Orwell was right "Big Brother" is watching us! Gavin | 03 November 2015

This technology is being used in the UK. A friend had his bicycle stolen at a local station. Scotland yard located the thief 5 months later as CCTV cameras ran faces against the CCTV footage taken during the original theft. SY located the thief at a tube station as the software ran algorithms one morning. The thief was one person in a sea of faces but was recognized by the software. Privacy lost but criminals with increasingly find their craft a quickly discoverable event.Luke Sullivan | 03 November 2015

There is a report out this week from the New America Foundation called "Ranking Digital Rights." Their team read all of the user agreements, privacy policies, and terms of service at major telecom and Internet companies, and then gave them scores on privacy and censorship. The best-scoring company was Google, with a 65 percent – a "D." Facebook scored 41 percent –an F-.Luke | 04 November 2015